Hawkins v. Counseling Associates, Inc.

• Decision Date: 26 March 2007
• Docket Number: No. 4:05-CV-1002 GTE.,4:05-CV-1002 GTE.
• Parties: Mary Lois HAWKINS, Plaintiff v. COUNSELING ASSOCIATES, INC., Defendant.
• Court: U.S. District Court — Eastern District of Arkansas

504 F.Supp.2d 419

Mary Lois HAWKINS, Plaintiff v. COUNSELING ASSOCIATES, INC., Defendant.

No. 4:05-CV-1002 GTE.

United States District Court, E.D. Arkansas, Western Division.

March 26, 2007.

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Lorraine Hatcher, Attorney at Law, Little Rock, AR, for Plaintiff.

Dan F. Bufford, Laser Law Firm P.A., Little Rock, AR, for Defendant.

ORDER ON MOTIONS FOR SUMMARY JUDGMENT

EISELE, District Judge.

Presently before the Court are Defendant's Motion for Summary Judgment and Defendant's Supplemental Motion for Summary Judgment.¹

I. Background & Alleged Facts

A. Motion for Summary Judgment

Plaintiff Mary Lois Hawkins, an African-American female, began working for Defendant Counseling Associates Inc., a non-profit corporation providing professional counseling and mental health services, on July 20, 1992.² Plaintiff alleges that she has been diagnosed with severe allergies known as chronic sinus disease, and allergic rhinitis with a vasomotor component, which causes her to experience adverse effects, including headaches, respiratory distress, difficulty breathing, and nasal congestion from exposure to strong scents, smells, and odors.³ Plaintiff states that she has been suffering from this condition since 1995.⁴

Plaintiff alleges that on several occasions she brought to her supervisor's and other manager's attention that certain products used by employees in the workplace, including strongly scented burning candles, perfume, cologne, cleaning solvents and sprays, hairspray, and fresh flowers, were offending her by triggering severe allergic reactions.⁵ She states that on at least two occasions, a memo⁶ was posted for employee notification to refrain from using such items.⁷ She states that a handwritten reply to one such memo, which stated "What about medicated foot powder for my athlete's feet?," inferred that the request was silly, and an unnecessary infringement on the "rights" of all other employees.⁸ She also alleges that other employees would deliberately wear stronger scents, spray substances within close proximity to her work area, burn multiple scented candles, and use hairspray in the closest women's restroom available to her.⁹

Plaintiff claims that she renewed her objection to management, requesting accommodation by the elimination of offensive products, and their response was for her to move from her work area to a hallway away from her coworkers, and the materials necessary for her to accomplish her work.¹⁰ Plaintiff states that she considered the move, and its implications, but declined because it would do little to abate the problem of the use of strong scents and odors in the workplace.¹¹ Plaintiff states that she attempted to remedy the problem for herself by bringing fans from home, but that on one occasion when she returned to work from an absence, she found that her personal fan had been disassembled and left on top of her desk, and she was unable to locate a fan that belonged to Defendant.¹²

Plaintiff states that a client seeking services in the office had to leave and breath fresh air to stop a coughing fit that had ensued due to the strong perfume scent another employee had recently sprayed in the office.¹³ Plaintiff states that she took photographs of the candles and lotion in the office of Laura Reahard, air deodorizers and cleaning solvents in the women's restroom, the fan she finally located, multiple candles on the desk of Rhomie King, her supervisor, a burning candle on the desk of Steve Newsome's secretary; and another burning candle on the desk in Jennie Beene's office.¹⁴

Plaintiff alleges that on November 28, 2004, she formalized her complaints about strong scent and odors in the workplace, by sending a memo to Mr. Steve Newsome, Defendant's CEO, which states:

The purpose of this letter is to inform you of my severe allergies and the problems I am having with the strong odors and the effect it has on my ability to do my job. I know I can't avoid all scents but I feel what I am experiencing has become harassment, discrimination, and a form of retaliation. Also I've noticed the scents are worse when you are not in the office, for instance Friday November 19, 2004 there were not any scents in the air but about 4:15 p.m. there was a strong scent of perfume outside my doorway.

There were two memos posted regarding the smells, but they were ignored and the problem seems to have gotten worse lately instead of better. When I came to Park Place in August of 2004 the office went from no scents to very strong scents that I know have been directed toward me as a means of retaliation from my superiors.

I have enclosed a letter from my doctor regarding my problem with the scents. The letter from Dr. Collie Shaw states that Plaintiff had been treated with medications and immunotherapy (allergy shots) for chronic sinus disease and allergic rhinitis with a vasomotor component since 1995.¹⁵ Dr. Shaw details the symptoms of her chronic sinus conditions as runny nose, watery eyes, headaches, and nasal congestion, which "seem to be worsened by strong smells, such as perfumes or strong chemical odors, sudden changes in temperature or humidity, as with all patients with her problems."¹⁶

On April 15, 2005,¹⁷ Plaintiff filed an EEOC charge against Defendant alleging race discrimination in her workplace. Specifically, Plaintiff alleged that she had sinus disease and allergic rhinitis.¹⁸ She stated that she had "complained to management about the candles, perfumes, etc [i]n the office," but that she continued "to be subjected to such scents and smells."¹⁹ She further states that "[t]wo memos have been sent to employees asking them not to burn candles or wear perfumes or scented lotions, however, they still continue. A White female employee had sinus problems and her direct co-worker no longer wears perfume."²⁰ She concludes by stating, "I believe I am subjected to different terms and conditions of employment because of my race, Black [i]n violation of Title VII of the Civil Rights Act of 1964, as amended."²¹

On July 20, 2005, Plaintiff brought her pro se Complaint in this Court alleging that she was discriminated against because of her race by her employer, Counseling Associates, in violation of Title VII of the Civil Rights Act of 1964. On August 24, 2005, the Court, in considering a Motion for Appointment of Counsel, stated that it had serious doubts as to the merits of Plaintiff's allegations of a hostile work environment. Additionally, the Court notified Plaintiff that "[i]n reviewing Plaintiff's lengthy, hand-written, pro se Complaint, it appears that she has included in her Complaint before this Court allegations other than and in addition to those presented to the EEOC in her Charge of Discrimination." The Court noted that administrative exhaustion requires that before pursuing Title VII claims in court, a plaintiff must first present such claims to the EEOC. The Court stated, "Thus, Plaintiff is placed on notice that she may only seek relief in this Court `for any discrimination that grows out of or is like or reasonably related to the substance of the allegations in [her] administrative charge.'" The Court held Plaintiff's Motion to Appoint Counsel in abeyance, but later terminated the motion as moot due to the entry of appearance of Plaintiff's current attorney. On April 5, 2006, Defendant filed its Motion for Summary Judgment.

B. Supplemental Motion for Summary Judgment

Plaintiff alleges that on or about February 1, 2006, she was demoted and her salary was reduced, and that the reason given for this reduction was that she did not succeed in obtaining HUD certification after completing a training course, which was to equip her for handling HUD billing or rent collection.²² She states that these duties were removed from her area of responsibility on or after February 1, 2006, and reassigned to other non-minority employees without HUD certification, and that in the Defendant's Russellville facility, the HUD duties are performed by a non-minority employee without HUD certification.²³ Plaintiff states that she was not told that HUD certification was a requirement for the job before she applied or was selected.²⁴ Plaintiff states that she objected to the demotion and wage reduction to no avail.²⁵

On June 21, 2006, Plaintiff was discharged from her employment. On June 23, 2006, Plaintiff moved to amend her complaint, and filed an amended motion to amend her complaint on July 24, 2006. On July 10, 2006, Plaintiff filed her second EEOC charge alleging discrimination between June 13, 2006 and June 21, 2006.²⁶ The Court granted Plaintiff's Motion to Amend and Amended Motion to Amend on August 9, 2006, "solely to add the claim of retaliatory termination" finding that the retaliatory discharge claim "`grew out of her pending discrimination claims that Plaintiff alleged in her EEOC complaint."²⁷ Plaintiff filed her Amended Complaint on August 23, 2006. On February 23, 2007, Defendant filed its Supplemental Motion for Summary Judgment, and renewed and incorporated its first Motion for Summary Judgment.

II. Summary Judgment Standard

Summary judgment is appropriate only when, in reviewing the evidence in the light most favorable to the non-moving party, there is no genuine issue as to any material fact, so that the dispute may be decided solely on legal grounds. Holloway v. Lockhart, 813 F.2d 874 (8th Cir.1987); Fed.R.Civ.P. 56. The Supreme Court has established guidelines to assist trial courts in determining whether this standard has been met:

The inquiry performed is the threshold inquiry of determining whether there is a need for trial — whether, in other words, there are genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

The Eighth Circuit set out the burdens...